Cheely v. State (10/8/93) ap-1317

NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RAYMOND D. CHEELY, )
) Court of Appeals No. A-4108
Appellant, ) Trial Court No. 3AN-90-7160
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1317 - October 8, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: John E. McConnaughy, III,
Fortier & Mikko, P.C., Anchorage, and Larry
Cohn, Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchor
age, and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Raymond D. Cheely was convicted of second-degree
murder, AS 11.41.110(a)(2), following a jury trial in the
Anchorage superior court. He appeals his conviction as well as
the 60-year prison term he received. We affirm Cheely's
conviction and his 60-year sentence, but we remand this case to
the superior court for reconsideration of the restriction on
Cheely's parole eligibility.
On the evening of October 19, 1990, Cheely and two
friends, Douglas Gustafson and George Kerr, were traveling on the
Glenn Highway in Gustafson's AMC Eagle. Cheely was driving;
Gustafson sat in the passenger's seat; Kerr sat in the back seat.
Gustafson was holding an HK-91 semi-automatic rifle he had
recently purchased.1
As they were driving, a red Toyota passed them. Cheely
thought that the driver of the Toyota had tried to cut him off or
rub up against his car. Becoming incensed, Cheely said, "Hey,
let's get those guys," or "We'll show you guys." In response,
Gustafson said, "Hey, I'm going to shoot that car." A discussion
ensued between Cheely and Gustafson about shooting the Toyota.
With the Toyota about 100 yards ahead, Cheely
accelerated to 75-80 miles per hour. Gustafson rolled down the
passenger window and rested the HK-91 on the ledge, preparing to
shoot. As Cheely approached the Toyota, he slowed down to give
Gustafson a better shot.
The Toyota had two occupants: the driver, Robert
Chamberlain, and a passenger, Jeffrey Cain. Unaware of what was
about to happen, Chamberlain prepared to leave the highway at the
Muldoon Avenue exit. As Chamberlain slowed down to negotiate the
exit ramp, Gustafson fired his rifle at the car. The bullet went
through the Toyota's rear window and penetrated Jeffrey Cain's
skull, killing him instantly.
Shortly after the shooting, George Kerr told the police
what had happened. On November 2, 1990, after further investiga
tion by the authorities, Gustafson was indicted for first-degree
murder, AS 11.41.100(a)(1), and Cheely was indicted for second-
degree murder, AS 11.41.110(a)(2). Gustafson came to trial at
the beginning of March, 1991. Following a two-week trial,
Gustafson was convicted of the lesser included offense of second-
degree murder. We affirmed Gustafson's conviction in Gustafson
v. State, Opinion No. 1298 (Alaska App., June 18, 1993).
Cheely's Motion for Change of Venue
Jeffrey Cain's death and Gustafson's and Cheely's
subsequent arrest received significant media attention.
Newspaper stories in late 1990 focused on the shooting, and they
mentioned another burglary and theft that Gustafson and Cheely
had committed a few days before the shooting. On February 13,
1991, six weeks before his trial (and two weeks before
Gustafson's trial), Cheely asked the superior court to move his
trial to a different venue. See AS 22.15.080(1). Presenting the
superior court with a compilation of the newspaper articles about
the case, Cheely argued that the media publicity made it impossi
ble for him to receive a fair trial in Anchorage.
Gustafson's trial began two weeks later, generating
renewed and extensive press coverage. On March 15, 1991, just
after Gustafson's trial ended, Cheely supplemented his motion for
change of venue with additional newspaper articles that had
appeared during Gustafson's trial.
Cheely's trial began at the end of March, only two
weeks after Gustafson was convicted. At that time, Cheely's
motion for change of venue remained undecided. Although the
record is unclear, Superior Court Judge Milton M. Souter
apparently decided to defer ruling on Cheely's motion until jury
selection was attempted, so as to better gauge the actual effect
of the pre-trial publicity on the pool of prospective jurors.
Following jury selection, Judge Souter denied Cheely's motion for
change of venue. On appeal, Cheely argues that the superior
court should have changed the venue of his trial because the
media coverage made it impossible to pick an impartial jury in
the Anchorage area.
1. The Media Coverage
In support of his motion to change the venue of his
trial, Cheely submitted over two dozen newspaper articles that
focused on Cain's death, Gustafson's arrest, Cheely's later
arrest, and Gustafson's trial and eventual conviction. Twelve of
these articles, from October and November 1990, reported the
shooting, the ensuing investigation, and Jeffrey Cain's funeral.
The remaining newspaper articles focused on Gustafson's trial
(which, as noted above, occurred in early March, 1991, and ended
two weeks before Cheely's trial began).
a. Initial Coverage of the Shooting
The shooting made the front page of the Metro section
of the Anchorage Daily News on October 21, 1990. The next day,
October 22, Gustafson's arrest was reported on the front pages of
both the Anchorage Times and the Anchorage Daily News. Both
articles reported that Kerr, a witness to the shooting, had
agreed to cooperate with the police. According to the articles,
Kerr told the police that he, Gustafson, and Cheely had been
driving to Anchorage, and that Cheely and Gustafson discussed
shooting at a passing sports car. When the sports car started to
exit the highway, Gustafson picked up his .308 caliber HK-91 semi-
automatic assault rifle, pointed the weapon in the direction of
the sports car, and fired. Cheely was described as the driver of
the vehicle, but the articles did not suggest that Cheely had
maneuvered the car to give Gustafson a better shot.
A follow-up article in the Anchorage Daily News again
recounted Kerr's description of the shooting. This article
reported that, when Kerr was asked to explain why Cheely had been
driving Gustafson's car, Kerr stated that Gustafson viewed Cheely
as an authority figure. The article also noted that a source
described Cheely and Gustafson as "trouble".
An October 25 article in the Chugiak - Eagle River Star
quoted a teacher from Chugiak High School who described both
Cheely and Gustafson as "gun nuts". This article mentioned that
Gustafson might have been involved in the Mike's Meats burglary
(see footnote 1), but the article did not tie Cheely to that
incident.
Toward the end of October, articles in both the
Anchorage Times and the Anchorage Daily News described Cain's
funeral and his family's and friends' reactions to his death.
Both articles contained pictures of the grieving family at the
funeral.
Around the same time, an article in the Anchorage Daily
News reported that Gustafson's bail had been doubled to $500,000
because he posed a flight risk. This article reminded readers
that Cheely had been driving when Gustafson shot Cain, and
(apparently for the first time) reported that both Cheely and
Gustafson were suspects in the Mike's Meats burglary in Eagle
River. This article stated that Gustafson might have purchased
the assault rifle he used to shoot Cain with some of the money
stolen from Mike's Meats. This article also reported that Cheely
had slowed the car and had changed lanes to give Gustafson a
better shot at the Toyota. While the article noted that Cheely
had not yet been charged in connection with either the burglary
or the shooting, the article reported that Cheely was awaiting
trial on a charge of stealing a pickup truck. Finally, the
article reported that the assault rifle had still not been
recovered, and it mentioned that the police believed that Cheely
might have moved the rifle from its original hiding place because
they found a hammer with Cheely's initials where they had
expected to find the weapon.
Cheely's arrest on November 3 made the front page of
the Anchorage Times. Anchorage Police Lieutenant Shirley Warner
was quoted as saying,
Murder in the second degree is when you
commit an act that is so outrageous you would
have to assume it endangers life. Cheely was
driving the car. He was slowing down,
maneuvering the car in such a way that Gus
tafson could get a shot off. We're going to
get them both: ... Gustafson on first-degree
[murder] and Cheely on ... second.
The article further stated that Cheely had also been indicted for
tampering with evidence and for interfering with official proceed
ings, for second-degree theft and second-degree burglary in
connection with the break-in at Mike's Meats, and for second-
degree assault for threatening a couple who knew about Cheely's
involvement in the burglary. The article also asserted that the
.308-caliber HK-91 assault rifle had indeed been purchased with
some of the $19,000 stolen from Mike's Meats.
A similar article from the Anchorage Daily News
reported that Cheely had been charged with second-degree murder
for "position[ing] [Gustafson's AMC] Eagle to give Gustafson a
good shot at the Toyota," and that a grand jury had also indicted
Cheely on charges of tampering with evidence and interfering with
official proceedings by concealing the murder weapon. The
article reported that Cheely's bail had been set at $500,000, and
included a photograph of Cheely in jail garb and shackles. The
article also noted that Cheely and Gustafson had been indicted
for the burglary and theft that occurred at Mike's Meats, and
that Cheely and Gustafson had assaulted a Mountain View couple
who knew of Cheely's and Gustafson's involvement in the burglary.
A November 4 article in the Anchorage Times contained a
large photograph of Cheely in handcuffs and jail garb. The
article described how, an hour before Cain's shooting, Cheely and
Gustafson had threatened Candy Sorenson and Ted Miller at
gunpoint because the couple knew about the Mike's Meats burglary.
The article reminded readers that, according to Kerr, Cheely and
Gustafson had decided to shoot at the Toyota because they thought
it had driven too close to them, and that Cheely had maneuvered
the car to allow Gustafson a better shot at the Toyota.
After this article, newspaper coverage of the shooting
appears to have stopped. The next newspaper article submitted in
support of Cheely's motion is a December 25, 1990 article in the
Anchorage Daily News which reported that Gustafson's trial had
been delayed. The article did not mention Cheely.
b. Coverage of Gustafson's Trial
An article in the Anchorage Daily News reported that
Gustafson's defense counsel had asked the superior court to
dismiss the first-degree murder charge and to suppress statements
made by Gustafson to Kerr in secretly recorded conversations.
The article stated that Cheely, Gustafson, and Kerr had stolen
$19,000 from an Eagle River meat market, and that they used this
money to buy the weapon that killed Cain. The article repeated
the circumstances surrounding the shooting.
A related article in the Anchorage Times, reporting
Gustafson's suppression motion, also stated that Kerr, Gustafson,
and Cheely had burglarized Mike's Meats and had stolen $19,000.
The article noted that Gustafson's counsel had asked for separate
trials of the murder and burglary cases, asserting that they were
unrelated events, but that the State had opposed, arguing that
the cases were related because the proceeds of the burglary had
been used to buy the murder weapon.
The Anchorage Times reported George Kerr's testimony
during Gustafson's trial. According to the Times article, Kerr
testified that Cheely became angry and cursed at the Toyota for
trying to rub against Gustafson's car. When Gustafson said that
he wanted to shoot the car's tires out, Cheely accelerated to 75
miles per hour to catch the Toyota. The article also stated that
Gustafson and Cheely had hidden the HK-91 assault rifle and that
it had not yet been recovered.
A similar article in the Anchorage Daily News also
reported Kerr's testimony during Gustafson's trial. Although the
article focused primarily on Gustafson's involvement in the
shooting and Kerr's belated attempts to protect his friends
during his testimony, the article reported that Kerr had
testified that Cheely became angry with the driver of the Toyota
and remarked, "These guys are f[ucking] with us." When Gustafson
stated that he was going to shoot at the car, Cheely responded,
"Let's get 'em. They're not going to push us around. Let's show
those a[sshole]s."
On March 5, 1991, the Anchorage Daily News reported
that Kevin Daugharty, Kerr's school counselor, had testified at
Gustafson's trial. Daugharty testified that he had been
"stunned" when he heard Kerr's recent testimony; Daugharty
believed that Kerr had perjured himself because Kerr's testimony
differed markedly from what Kerr had told him three days after
the shooting. In particular, Daugharty testified that Kerr's
earlier statements to him contradicted Kerr's current testimony
that Gustafson had merely pointed the assault rifle out of the
window without aiming, and that Cheely had never "paced" the
Toyota to give Gustafson a better shot. A similar article
appeared in the Anchorage Times.
Another Anchorage Daily News article from the same time
period focused on whether Gustafson had acted with intent to
kill. The article only mentioned Cheely in passing, but did
remind readers that Cheely had been driving the car, had disposed
of the murder weapon, and was charged with second-degree murder
as an accomplice. The article reported that the jurors at
Gustafson's trial were not being told that the assault rifle had
been purchased with the proceeds of a burglary.
In a March 12 article, the Anchorage Daily News
reported the closing remarks of the prosecution and the defense
at Gustafson's trial. The article noted that both sides
emphasized the importance of the secretly recorded statements
that Gustafson had made to Kerr. Cheely was frequently mentioned
in the article as having tipped Gustafson off that Kerr was an
informant. The article also mentioned Daugharty's testimony that
Kerr told him that Cheely had maneuvered the car to give
Gustafson a better shot at the Toyota.
The final article included with Cheely's change of
venue motion reported that Gustafson had been found guilty. It
also said, "Raymond Cheely, who was driving Gustafson's car
during the shooting, sped up as the Toyota was exiting the
highway at Muldoon so Gustafson could have a clear shot. Cheely
is charged with second-degree murder and is scheduled for trial
later this month."
2. Jury Selection
Jury selection for Cheely's trial began on March 26,
1991. The court initially summoned 70 potential jurors. Before
the prosecution and defense attorneys began their individual voir
dire of the prospective jurors, Judge Souter excused 27 prospe
ctive jurors. Many of these were excused because of hardship (9)
or because they had connections to people involved in the case
(4). However, 8 of the 27 were excused because they had formed
opinions about Cheely's guilt or innocence from what they had
previously heard or read in the media. In addition, 2 more
prospective jurors were excused because they had formed opinions
based on conversations and other personal experiences, and
another 3 were excused because they had formed opinions based on
unstated reasons. The last of the 27 was excused for mental
illness.
During the second half of jury selection, the remaining
four dozen prospective jurors were questioned individually by the
prosecutor and the defense attorney. Before trial, Cheely's
attorney had asked the court to grant him additional peremptory
challenges beyond the 10 allotted by Alaska Criminal Rule 24(d).
This request remained under advisement when the voir dire of
individual jurors began. After 17 prospective jurors had been
individually questioned by the attorneys, with 12 of them being
passed for cause, Judge Souter inquired if the defense attorney
still wished additional peremptory challenges. Cheely's attorney
answered that he wanted to wait until he could appraise the
results of the completed voir dire process:
DEFENSE ATTORNEY: I still have the
request, Your Honor, but I think we should
wait until we get further into the peremptory
stage and see what happens there, as to wheth
er I use all my peremptory challenges up or
not.
The attorneys continued their questioning of individual
prospective jurors. By the time court recessed on the fourth day
of voir dire, a panel of twelve jurors had been chosen and the
selection of alternates had begun. During this process, 45
prospective jurors were individually questioned, and 15 were
excused for cause. Of these, 12 were excused primarily because
they had formed opinions about the case due to pre-trial publici
ty. (The court granted every one of Cheely's challenges based on
a prospective juror's exposure to pre-trial publicity.) The
other 3 prospective jurors were excused for causes unrelated to
pre-trial publicity.
Both the prosecution and the defense used their entire
normal allotments of peremptory challenges (6 and 10, respective
ly) during the selection of the twelve-member jury panel. In
addition, as court ended on March 29, the defense exercised its
first peremptory challenge of a prospective alternate juror.
However, of the 11 defense peremptory challenges, 9 were
exercised against prospective jurors who had little or no
knowledge of the case from media reports. Only 1 defense
challenge appears to have been based on the prospective juror's
substantial exposure to media coverage. Another challenge
appears to have been based on a combination of media exposure,
connection to the parties, strong feelings about gun safety, and
the fact that the juror's house had recently been burglarized by
teenagers.
As the jury selection process neared its end on the
afternoon of Friday, March 29, the court again took up the
subject of Cheely's pending motion for additional peremptory
challenges. Even though Cheely's attorney had used all 10 of his
regular peremptory challenges and had used 1 of his 2 allotted
challenges to alternate jurors, he declared that he did not wish
any additional peremptory challenges.
Cheely's trial resumed on Monday, April 1, and the
selection of alternate jurors was completed. After the twelve
regular jurors and three alternates had been seated, Judge Souter
denied Cheely's pending motion for change of venue:
There was a motion to change venue. We spent
a full week picking the jury. [The prosecu
tor] has characterized the court's efforts in
that regard as being liberally intended to
weed out people who might have any possible
reason to be biased by the pre-trial publici
ty. Indeed, that was my method, my intent.
I don't think [the defense attorney]
disagrees [that] that was done. The motion
to change venue is denied. It appears to me
that we indeed were able to get a fair panel
of unbiased people, not exposed to
substantial pre-trial publicity. And
certainly, in instances where they have been
exposed, they displayed - under stringent
questioning from defense counsel - ... an
ability to set aside the little bit that they
remembered and try the case based on the
evidence and the law and not on anything
else.
In response to Judge Souter's ruling, Cheely's counsel stated:
[F]or purposes of appellate review, should it
go that far, if we don't at least indicate
that we want venue changed after jury selec
tion, we [are] deemed to waive it. So, for
purposes of the record, we would still
request that venue be changed for all the
reasons set forth [in our motion and] the
results of jury selection. And we'll abide
by your ruling at this time.
3. Should Venue Have Been Changed?
On appeal, Cheely renews his argument that the superior
court should have changed the venue of his trial. He relies
chiefly on Mallott v. State, 608 P.2d 737 (Alaska 1980). In
Mallott, the supreme court recognized that "the voir dire process
is not an infallible Geiger counter of juror prejudice" when a
criminal case has received intensive pre-trial media coverage;
for that reason, the court adopted the standard of the American
Bar Association that
[a] motion for a change of venue ... shall be
granted whenever it is determined that,
because of the dissemination of potentially
prejudicial material, there is a substantial
likelihood that, in the absence of such
relief, a fair trial by an impartial jury
cannot be had. ... A showing of actual preju
dice shall not be required.
Mallott, 608 P.2d at 748.
The highway shooting generated extensive newspaper and
television coverage. Moreover, 20 prospective jurors (of a
venire of 70) were excused because they had formed opinions about
the case based on media coverage.2 Because of these factors,
Cheely's case must be analyzed under the Mallott standard.
Compare Newcomb v. State, 800 P.2d 935, 938 (Alaska App. 1990).
However, even under Mallott, the question is not how
many biased prospective jurors were identified and excused;
rather, the question is whether there is substantial reason to
doubt the impartiality of the jurors who remained after the
selection process was complete. See Newcomb, 800 P.2d at 938-39.
Mallott calls upon trial judges to ask whether pre-trial
publicity has created a "partiality that [can] not be laid aside"
in the jurors ultimately selected to judge the defendant's guilt
or innocence. 608 P.2d at 748, quoting Murphy v. Florida, 421
U.S. 794, 800; 95 S.Ct. 2031, 2036; 44 L.Ed.2d 589, 595 (1975).
Phrased another way, Mallott asks judges to determine the
likelihood that, despite voir dire, the jury panel "harbor[s]
unrevealed prejudices as a result of the publicity". 608 P.2d at
748.
Under Mallott, when prospective jurors have been
exposed to intensive, prejudicial pre-trial publicity, judges
need not take those jurors' protestations of impartiality at face
value. However, as the facts of Mallott illustrate, no change of
venue is required when, despite the dissemination of pre-trial
publicity, a substantial portion of the prospective jurors have
not been exposed to the publicity or, at least, not exposed to
its prejudicial aspects. In Mallott itself, the supreme court
upheld the trial court's refusal to change venue because it
appeared, from individual voir dire, that, despite potentially
prejudicial pre-trial publicity, more than half of the
prospective jurors - and all but two of the jurors ultimately
selected to try the case - had not been exposed to the worst
aspects of that publicity and had heard only a basic description
of the alleged crime. 608 P.2d at 748.
In Cheely's case, the judge and trial attorneys recog
nized the problem posed by pre-trial publicity, and they
therefore engaged in probing, individual questioning of the
prospective jurors, aided by an extensive pre-voir dire
questionnaire that each prospective juror filled out before
coming to court. One fact that emerged from this individual
questioning was that, in a large community such as Anchorage,
many residents do not follow media coverage of events. See
Newcomb, 800 P.2d at 939. Of the twelve jurors ultimately
selected to decide Cheely's case, only one had read the newspaper
coverage of Gustafson's trial. Six other jurors had read the
initial newspaper coverage in the fall of 1990. But of these
six, one suspected everything he read in newspapers, and another
three apparently did not know (until they came to court) that
Cheely was involved in the incident. Two jurors said they never
read newspapers and had seen only the initial television
coverage. One juror had not read or viewed any media coverage,
with the exception of glancing at headlines. Finally, two jurors
had been out of state when the shooting occurred and knew almost
nothing about the case.
In short, it appears that only one member of the jury
panel knew much more about the case than a general description of
the crime. Several members of the jury were not aware of the
allegations against Cheely until they heard the indictment read
in court at the beginning of the selection process. And, as
noted above, many other prospective jurors were equally untainted
by pre-trial publicity. The great majority of Cheely's
peremptory challenges (9 of 11) were exercised against prospec
tive jurors who had no more exposure to pre-trial publicity than
the twelve jurors ultimately selected.
Because the trial judge is in the best position to
evaluate the conduct and results of jury selection, we are to
affirm the superior court's denial of Cheely's motion for change
of venue unless we are convinced, after an independent review of
the record, that the superior court abused its discretion.
Newcomb, 800 P.2d at 937. From the record we have summarized
above, Judge Souter could reasonably conclude that pre-trial
publicity had made jury selection more difficult but not impossi
ble, and that the jurors ultimately selected did not harbor
unrevealed prejudices against Cheely. Compare Alexander v.
State, 838 P.2d 269, 273 (Alaska App. 1992).
We conclude that Judge Souter did not abuse his discre
tion when he denied Cheely's motion for change of venue.
The Testimony Concerning Cheely's Out-of-Court
Statements
Cheely asserts that the trial court should not have
allowed the prosecution to introduce evidence of his statement to
two friends, Ted Miller and Candy Sorenson, that he was jealous
of Gustafson because Gustafson had been the one to fire the
rifle. Cheely argues that his remark to Miller and Sorenson
should have been excluded under Alaska Evidence Rule 404(a)
because it showed Cheely's bad character.
Evidence Rule 404(a) prohibits admission of evidence of
a person's character when that evidence is offered "for the
purpose of proving that he [or she] acted in conformity therewith
on a particular occasion". In other words, Rule 404(a) bars a
party from relying on a person's character as circumstantial
evidence that the person acted in character during the events
being litigated. See the second and third paragraphs of the
Commentary to Evidence Rule 404(a).
In Cheely's case, however, the prosecution did not
present evidence of Cheely's character (for example, a witness to
testify, based upon reputation or opinion, that Cheely was a
violent or anti-social person - see Evidence Rule 405) to circum
stantially prove that Cheely must have solicited, aided, or
abetted Gustafson's shooting of Jeffrey Cain. Rather, the
prosecution presented proof of Cheely's own statements about the
shooting.
As Judge Souter recognized, Cheely's attitude toward
the shooting, demonstrated by his statements that he envied
Gustafson, tended to prove an element of the prosecution's case -
that Cheely had acted with intent to promote or facilitate the
shooting. Although Cheely's remarks reflected adversely on his
character, disparagement of Cheely's character was but a
tangential effect of the evidence, not the purpose for which it
was admitted.
Testimony that Cheely was jealous of Gustafson's more
active role in the shooting was not "character evidence" within
the scope of Rule 404(a). Judge Souter did not abuse his discre
tion when he allowed the prosecution to present this evidence.
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
Admission of the Glass Warrant Tape
Cheely also argues that the trial judge should have
prevented the prosecution from introducing a tape recording and
an accompanying transcript of a monitored conversation between
Miller, Sorenson, and Cheely.3 During certain portions of this
tape, the conversation is all but indiscernible. Because of
this, Cheely argues that the tape had little or no probative
value and only encouraged the jury to speculate about
incriminating statements Cheely might have made.
The record supports Judge Souter's decision to admit
the tape and transcript. The transcript shows that the inaudible
portions of the conversation were generally small talk; Cheely's
comments about the shooting are clearly discernible. In particu
lar, the taped conversation contains Cheely's suggestions to
Miller and Sorenson that George Kerr fired the shot, not
Gustafson, that Cheely had told Kerr to use his own gun, but that
Kerr had used Gustafson's gun, that Kerr had intended all along
to frame Gustafson, and that Gustafson had hidden the gun the
next day. Moreover, the prosecution called Sorenson to describe
the taped conversation. During Sorenson's testimony, the
prosecutor used an overhead projector to display the transcript,
while Sorenson explained the context of some of the statements on
the tape.
In Gallagher v. State, 651 P.2d 1185, 1189-90 (Alaska
App. 1982), this court stated:
The rule is well established that partially
audible recordings may be admitted, within
the discretion of the trial court, if their
probative value outweighs their potential for
[unfair] prejudice and if the omitted [or
inaudible] portions are not so substantial as
to render the recording unreliable.
Under this standard, Judge Souter did not abuse his discretion
when he admitted the recorded conversation. See also Suiter v.
State, 785 P.2d 28, 32 (Alaska App. 1989).
Allegation of Juror Misconduct
On Saturday, April 20, 1991, during jury deliberations,
Judge Souter convened court and read aloud the following note
from the jury:
Last night one of the jurors drove out
the Glenn Highway and Muldoon Road
Interchange and drove back and forth between
the Ft. Rich interchange and [the Boniface]
interchange twice. This juror has not
expressed her findings or opinion of what she
saw or believed, et cetera, as we stopped her
... the minute she told us she had done it.
We would like to know if this trip was
permissible or not. If it was, may she dis
cuss her findings with the jury?
In response to this note, the prosecutor and defense
attorney agreed on a list of questions to ask the juror. Judge
Souter brought the juror into court and questioned her from this
list.
The juror told Judge Souter that she had driven from
Anchorage to the Fort Richardson interchange, headed back to
Anchorage, then turned around at the Northway Mall and repeated
the trip. Her route took her past the Muldoon Avenue freeway
interchange twice. She stated that she was pondering the case,
"trying to get it straight in my mind, I guess." She added that,
during her drive, she "wasn't really looking for anything,
because I didn't think there would be anything to look for. ...
I was just thinking, and I drove it twice and I went home." The
juror declared that she had not stopped, looked around for
evidence, made any timing tests, or taken any notes or
photographs. She said that she observed nothing different from
what she had earlier observed when the entire jury was taken to
view the spot.
When Judge Souter was done questioning the juror,
Cheely's attorney asked her additional questions. The juror
assured the defense attorney that she had not made observations
about how a car would travel when leaving the freeway to take the
exit ramp, nor had she reached any other conclusions about the
case. Toward the end of the defense attorney's questioning of
the juror, the following exchange occurred:
DEFENSE ATTORNEY: It sounds to me like
you were just driving down the highway, think
ing about it ...
JUROR: I was.
DEFENSE ATTORNEY: ... and that's about
it ...
JUROR: I was; I was just driving.
DEFENSE ATTORNEY: ... like if you had
been driving ...
JUROR: ... down the highway thinking
about it. I was just thinking.
DEFENSE ATTORNEY: Similar [to] if you
had been thinking about a family member or
something like that, that just preoccupied
your mind but it didn't -- you weren't really
paying attention, other than keeping in your
lane and making sure you didn't hit anybody?
JUROR: Right.
DEFENSE ATTORNEY: Okay.
. . .
DEFENSE ATTORNEY: It sounds to me like
you're the kind of person who likes to go on
a drive to ... think about some important
things ...
JUROR: Think.
DEFENSE ATTORNEY: ... and that's your
way of getting away from people and thinking
about it, and you just happened to do the
highway out that way.
At the end of the questioning, the juror was excused
from the courtroom and Judge Souter asked the parties if they
objected to the juror's remaining on the panel and continuing
deliberations. The following colloquy ensued:
DEFENSE ATTORNEY: Judge, just for the
purpose of preserving the record, we would
move for a mistrial.
THE COURT: On what basis?
DEFENSE ATTORNEY: Based on her going
out and doing some sort of investigation.
That's all I have to say.
THE COURT: It doesn't appear to me that
she did any investigation whatsoever. Motion
for mistrial is denied. ... I totally be
lieve what she said. I think she was com
pletely forthright with us. I don't think
she was attempting to hide anything.
On appeal, Cheely contends that Judge Souter failed to
conduct a sufficiently thorough inquiry into the juror's actions.
However, the record demonstrates that Cheely's counsel approved
of the court's approach to the matter throughout. The defense
attorney did not suggest, as Cheely does now, that the trial
court must employ a rebuttable presumption that the juror was
improperly influenced, nor did Cheely's attorney take the
opportunity to ask how the jury panel had become aware of the
single juror's drive down the highway. Indeed, when he sought a
mistrial, Cheely's attorney did not suggest that the court's
inquiry had been inadequate. Instead, Cheely's attorney argued
that the existing record showed that the juror had, despite her
assurances, conducted some sort of investigation into the facts
of the case. Thus, Cheely failed to preserve his present
assertion that Judge Souter failed to inquire fully into the
incident. Alaska Evidence Rule 103(a)(1).
More important, the question of what exactly the juror
did - particularly, whether she independently investigated the
case or instead simply drove her car and thought - is an issue of
fact. In the trial court, Cheely contended in cursory fashion
that the juror's answers demonstrated that she had conducted an
improper personal investigation of the case. However, the
defense attorney's questioning of the juror (quoted above)
suggested just the opposite; the defense attorney's leading
questions to the juror suggest that he accepted her innocent
explanation of the incident. Moreover, Judge Souter clearly
accepted the juror's statements as embodying the truth of the
occurrence. He explicitly found that the juror had not engaged
in any misconduct, and that finding must be upheld on appeal
unless it is clearly erroneous. On this record, it is not.
Judge Souter did not abuse his discretion when he
denied Cheely's motion for mistrial. Swain v. State, 817 P.2d
927, 930 (Alaska App. 1991), citing West v. State, 409 P.2d 847,
852 (Alaska 1966).
Sentencing Issues
Second-degree murder is an unclassified felony with a
minimum term of 5 years' imprisonment and a maximum term of
99 years' imprisonment. AS 12.55.125(b). Judge Souter sentenced
Cheely to 60 years in prison, and exercised his authority under
AS 12.55.115 by restricting Cheely's eligibility for parole until
Cheely had served 25 years. (Under AS 33.16.100(d), Cheely would
otherwise be eligible for parole after serving "one-third of the
period of confinement imposed".)
Noting that the benchmark sentencing range for second-
degree murder is 20 to 30 years, Page v. State, 657 P.2d 850, 855
(Alaska App. 1983), Cheely argues that his 60-year sentence is
excessive. However, Judge Souter found that Cheely's crime was
among the worst second-degree murders. Judge Souter concluded
that Cheely, without any provocation whatsoever from the victims,
had incited Gustafson to shoot at them:
THE COURT: [I]t's difficult to talk
about [one] murder being worse than another
murder. But, indeed, one can categorize
them, and, considering the aspects which I've
already reviewed here, it's clear to me that
this murder, totally unprovoked, [of an]
unsuspecting person, and committed in a way
that, in a very real sense, threatened us all
by its very random nature, is among the very
worst that could be possibly be done as a
second-degree murder.
. . .
There was plenty of time to think about
what was going on. I am convinced, from the
trial testimony that I heard and observed,
that Raymond Cheely, Jr., not only incited
this thing, [but] he created this whole inci
dent out of whole cloth. The other car did
nothing wrong. It was Ray Cheely, Jr., that
invented an incident out of whole cloth, and
then he incited Gustafson to take part in the
scheme of events that came about. And then,
Ray Cheely, Jr., sped up to catch the other
car. And I am absolutely convinced that,
when they got near the Muldoon overpass, that
he synchronized the speed of his vehicle with
the speed of the victim's vehicle. Counsel
can argue to me all year long that Mr. Cheely
did not pull the trigger. Indeed, he did
not, but he ... played a very direct role in
the commission of this murder. ... He is
fully as culpable as Gustafson.
In essence, Judge Souter found that Cheely had instigated a
random homicide. Judge Souter also found that Cheely showed no
remorse for his actions. Because the record supports Judge
Souter's finding that Cheely's crime was among the worst second-
degree murders, a sentence exceeding the Page benchmark was
appropriate.
In addition to finding Cheely's crime to be among the
worst second-degree murders, Judge Souter also found (based on
the prosecution's presentation at sentencing) that Cheely (1) had
planned and executed the burglary of Mike's Meats and the ensuing
theft of $19,000; (2) had sexually assaulted a young woman; (3)
had stolen dynamite; (4) had threatened Miller and Sorenson
because they knew he and Gustafson were involved in the Mike's
Meats burglary; (5) had attempted to rob a McDonald's restaurant;
and (6) had discussed murdering a friend's father. Finally,
Judge Souter found that Cheely had played a leadership role with
respect to Gustafson and Kerr. For all these reasons, Judge
Souter found that Cheely was among the worst class of offenders.
For this added reason, Judge Souter could exceed the Page
benchmark in imposing Cheely's sentence.
Cheely argues that, when Judge Souter determined
Cheely's term of imprisonment, he placed disproportionate weight
on the various other crimes that the State proved at Cheely's
sentencing. The record does not support Cheely's assertion.
Leaving aside Cheely's other crimes, Judge Souter had already
concluded that Cheely's instigation of the shooting in this case
constituted one of the most serious forms of second-degree
murder. It is true that Judge Souter found Cheely to be a worst
offender based in part on the other crimes proved at sentencing.
Nevertheless, despite having found Cheely to be a worst offender,
Judge Souter refrained from imposing a maximum sentence. We
conclude that Judge Souter did not place inappropriate weight on
Cheely's other crimes.
We further conclude that Cheely's sentence of 60 years'
imprisonment is not clearly mistaken. Judge Souter found that
Cheely had committed one of the worst second-degree murders and
that, based on this crime and other criminal acts, Cheely was a
particularly dangerous offender. He also concluded that Cheely's
prospects for rehabilitation were uncertain. Based on these
findings, Judge Souter concluded that Cheely's sentence primarily
had to emphasize the sentencing goals of deterring Cheely and
isolating him from society, with secondary emphasis placed on the
goals of deterring others and reaffirming societal norms. Judge
Souter's conclusions are supported by the record, and it was his
responsibility to assess the applicability of the various sentenc
ing goals to the facts of Cheely's case. Asitonia v. State, 508
P.2d 1023, 1026 (Alaska 1973). In sum, we find that Judge
Souter's sentencing decision is not clearly mistaken. McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974).
Cheely's final claim on appeal is that Judge Souter
erred when he restricted Cheely's parole eligibility. As noted
above, Cheely would normally be eligible for discretionary parole
after serving one-third of his 60-year sentence. AS
33.16.100(d). Judge Souter, however, denied Cheely parole
eligibility until he had served 25 years of the 60-year sentence.
The judge reasoned that "a decent respect for human life, the
need to deter others, [and] the need to reaffirm societal norms,
to express community condemnation for what occurred here,
requires that this young man spend a substantial period of time
in prison."
Both Cheely and the State assert that Judge Souter
misunderstood the amount of time that Cheely normally would have
to spend in jail before becoming eligible for parole. The
parties' disagreement with the superior court involves the
construction of two statutes, the parole eligibility statute and
the good time credit statute. The parole eligibility statute, AS
33.16.100(d), states that a defendant convicted of second-degree
murder must serve at least one-third of his or her period of
confinement before becoming eligible for discretionary parole.
The good time credit statute, AS 33.20.010(a), states that a
prisoner sentenced to a term of more than 3 days "is entitled to
a deduction of one-third of the term of imprisonment[,] rounded
off to the nearest day[,] if the prisoner follows the rules of
the correctional facility in which the prisoner is confined."
Reading the parole eligibility statute in conjunction
with the good time credit statute, Judge Souter determined that
Cheely would be deemed to have served one-third of his 60-year
sentence (and thus be eligible for parole) when his actual time
in prison augmented by his accrued good time credit equaled 20
years - that is, when Cheely had spent 13 years and 4 months (two-
thirds of 20 years) in jail. Based on this interpretation, Judge
Souter restricted Cheely's parole eligibility until he had
"served" 25 years - or, using a similar calculation, until Cheely
had actually spent 16 years and 8 months in jail.
Although neither the State nor Cheely objected to Judge
Souter's statutory interpretation in the trial court, both
parties now insist that Judge Souter misinterpreted the statutes.
They argue that good time credit does not affect parole
eligibility under AS 33.16.100(d) - that parole eligibility is
triggered by the amount of time a prisoner spends in actual
confinement, unmodified by the good time credit the prisoner may
have accrued. However, both Cheely and the State deal with this
issue in a single paragraph of their briefs; their arguments are
both short and conclusory. Neither party asserts that the
Department of Corrections or the Parole Board interprets these
statutes any differently from Judge Souter. In fact, the
department's parole regulations support Judge Souter's
interpretation. See 22 AAC 20.005(c).
Moreover, we note that AS 33.16.090(c), which governs
parole eligibility of prisoners sentenced to enhanced or consecu
tive presumptive terms, specifically provides that good time
credit will be taken into account in determining when a prisoner
has "served" his or her first presumptive term (thus making the
prisoner eligible for discretionary parole). That statute reads:
Except as provided in (e) of this sec
tion, a prisoner [subject to presumptive
sentencing who has received] a period of
sentence enhancement ... under
AS 12.55.155(a) or ... a consecutive or
partially consecutive presumptive sentence
imposed under AS 12.55.025(e) or (g) shall
serve the unenhanced portion of the sentence
or the initial presumptive sentence before
being otherwise eligible for discretionary
parole under AS 33.16.100(c) or (d). For
purposes of this subsection, the sentence for
the most serious offense in the case of
consecutive or partially consecutive
presumptive sentences shall be considered the
initial presumptive sentence. The unenhanced
sentence or the initial presumptive sentence
is considered served for purposes of
discretionary parole on the date the
unenhanced or initial presumptive sentence is
due to expire less good time earned under AS
33.20.010.
(emphasis added)
In short, while we are not prepared to definitively
interpret the relationship between AS 33.16.100(d) and AS 33.20.
010(a) in this case, the parties have failed to convince us that
Judge Souter wrongly interpreted the interplay between the parole
eligibility statute and the good time credit statute. Because,
as explained below, we are remanding this case to the superior
court for reconsideration of the parole eligibility restriction,
the parties will have the opportunity to again address this issue
if they wish.
We turn now to Cheely's argument that Judge Souter had
insufficient reason to restrict his parole eligibility. When a
sentencing judge restricts parole eligibility, the judge must set
forth with particularity his or her reasons for concluding that
the parole eligibility prescribed by AS 33.16.090 and
AS 33.16.100(c)-(d) is insufficient to protect the public and
insure the defendant's reformation. Newell v. State, 771 P.2d
873, 876 (Alaska App. 1989), quoting Spencer v. State, 642 P.2d
1371, 1377 (Alaska App. 1982); see also Stern v. State, 827 P.2d
442, 450 (Alaska App. 1992). When the defendant's sentence is
lengthy, as in Cheely's case, Alaska law presumes that questions
of discretionary release are better left to the Parole Board,
since the Board evaluates the advisability of parole release in
light of the defendant's tested response to Department of
Corrections rehabilitative measures. Lawrence v. State, 764 P.2d
318, 321-22 (Alaska App. 1988). However, because the Alaska
legislature has affirmatively given sentencing judges the power
to restrict or deny parole eligibility, this presumption (that
parole release of long-term prisoners should normally be
evaluated after the defendant has established an institutional
history) must remain rebuttable. Stern, 827 P.2d at 450;
Bloomstrand v. State, 656 P.2d 584, 591 (Alaska App. 1982).
In Cheely's case, Judge Souter stated that his reasons
for restricting Cheely's parole eligibility were to insure that
Cheely spent enough time in prison to satisfy the sentencing
goals of deterring others and reaffirming societal values.
However, as Stern, Newell, and Bloomstrand indicate, restrictions
on parole eligibility must be premised on different sentencing
goals; they must rest on a finding that normal parole eligibility
would be "insufficient to protect the public and insure the
defendant's reformation". Stern, 827 P.2d at 450.
The State argues that Judge Souter was skeptical of
Cheely's prospects for rehabilitation, and portions of the record
support the State's assertion. However, because Judge Souter did
not specifically find that normal parole eligibility would be
insufficient to protect the public and insure Cheely's
reformation, we conclude that the superior court must reconsider
its decision to restrict Cheely's parole. On remand, the
superior court should delete the parole eligibility restriction
unless it affirmatively finds that Cheely's normal parole
eligibility under AS 33.16.100(d) is insufficient to protect the
public and achieve Cheely's rehabilitation.4
Conclusion
We AFFIRM Cheely's conviction and his 60-year sentence.
However, we REMAND this case to the superior court for
reconsideration of the restriction on Cheely's parole
eligibility.
_______________________________
1 Gustafson purchased the weapon with money that Cheely,
Gustafson, and Kerr stole from Mike's Meats in Eagle River in a
burglary a few days before. Information about this prior crime
was excluded from Cheely's trial, but, as we discuss later in
this opinion, it is relevant to Cheely's motion to change venue
and to Cheely's sentencing argument.
2 We note, however, that one of these twenty was excused
because, due to his inveterate distrust of the government, he had
formed the opinion that Cheely was innocent.
3 Miller and Sorenson agreed to help the police investi
gation by wearing a monitoring device to record a conversation
with Cheely, after the police had obtained judicial authorization
for this procedure under State v. Glass, 583 P.2d 872 (Alaska
1978).
4 We additionally note one aspect of Cheely's sentence that
apparently should be modified. Judge Souter announced that the
first 7 years of Cheely's sentence were "presumptive". The
written judgement echoes this categorization, declaring that
Cheely's sentence is "partially presumptive" and that he "is
ineligible for parole, except as provided in AS 33.16.090(b) and
(c)." This is not correct. Sentences for second-degree murder
are not presumptive. AS 12.55.125(b); Gustafson v. State,
Opinion No. 1298 (Alaska App., June 18, 1992), slip opinion at
26; Weitz v. State, 794 P.2d 952, 957 n.3 (Alaska App. 1990).
Cheely's eligibility for parole is governed by AS 33.16.100(d),
not AS 33.16.090(b)-(c).